Prosecution sanction in alleged extra-judicial executions in Manipur

N Brajakanta Singh (Guest Faculty, Department of Law, MU)
Extra Judicial Execution Victim Families Association, Manipur (EEVFAM) filed a PIL before the Supreme Court in connection with killing of 1528 people in encounters by security forces under the protective regime of the Armed Forces Special Powers Act, 1958 (AFSPA) in the State of Manipur between 1979 and 2012. The Supreme Court, in an extraordinary verdict, pronounced that the armed forces could not claim blanket immunity from prosecution and ordered an inquiry to be conducted into the killings by Special Investigation Team of CBI vide order dated 14.07.2017. Later, Army personnel and police officers filed separate petitions praying for immunity for soldiers and police personnel for their actions carried out in good faith, but the Supreme Court dismissed the petitions. The long pendency of fake encounter cases before different Courts has caused anxiety to a large number of justice seeking people including the families of victims. For the central investigating agency, the investigation of numerous such cases is still a daunting task. Very recently, we came to know that on October 20, 2022, a division bench of the Supreme Court of India under the leadership of the Chief Justice of India, Mr Justice UU Lalit, one of the Justices of the division bench which delivered the landmark judgment in Extra-Judicial Execution Victims’ Families of Manipur v. Union of India, (2017) 8 SCC 417 which stops fake-encounters in the State of Manipur, has requested the High Court of Manipur to dispose of a reference made by the Chief Judicial Magistrate, Imphal West on the issue of prosecution sanction against some armed forces personnel involved in a case within six months’ time.
The Supreme Court also ordered the case to be listed before an appropriate bench on November 15, 2022. This piece examines the case and also analyses the issue of prosecution sanction of armed forces personnel involved in illegal encounters in the state.
As directed by the Supreme Court, the CBI investigated the death of one Pheiroijam Sanajit of Lamlai, Imphal East. Family members claimed that Sanajit was picked up from his residence while he was sleeping by 19 Rajput Rifles located at Leimakhong, Imphal West at about 1 am of 31.05.2004 and taken away. On next day, his dead body was found at Senjam Chirang in Imphal West. The wife of the deceased filed a writ petition in 2005 before the Gauhati High Court (Imphal Bench) in connection with the abduction and murder of Sanajit. On the direction of the High Court, the District Judge, Manipur East conducted an enquiry and held that Pheiroijam Sanajit succumbed to bullet injuries fired by the personnel of 19 Rajput Rifles and the deceased did not die in the retaliatory fire at Senjam Chirang, Imphal West. Forensic Sciences Laboratory report indicated that the empty cartridge was not fired from the firearm allegedly recovered from the deceased. The High Court upheld the findings of the District Judge, Manipur East and awarded compensation to the widow of the deceased.
In the FIR registered by CBI on the direction of the Supreme Court, ten officers and personnel of 19 Rajput (Bikaner) were named as accused. Out of these 10, two accused had expired. After thorough investigation, CBI submitted Final Report to the Court of CJM/IW stating that there are sufficient materials to prosecute four accused personnel under different sections of the Indian Penal Code including for murder. As two of the accused had already expired, no action is suggested against them. As no sufficient evidences are found against three named accused and other unnamed personnel of 19 Rajput Rifles, they are dropped from prosecution. It was reported that vide order dated 02.12.2019, the Central Government denied to accord prosecution sanction u/s 197 CrPC and u/s 6 AFSPA against four accused persons. In the circumstances, Final Report has been submitted by the CBI to the Court of CJM/IW for passing such orders as deemed fit in the interest of justice. The CJM/IW issued notice to the Under Secretary (AG/DV/HRC), Ministry of Defence to appear in person or by a pleader before it to show cause why prosecution sanction shall not be granted when the CBI found enough evidence against the accused army personnel. It was observed that denial of prosecution sanction in such situation involved a question of law. The CJM/IW observed  that denial of prosecution sanction has become a routine matter by the Central Government in most of the alleged fake encounter cases investigated in pursuance of the directions of the  Supreme Court by taking refuge under Section 6 of AFSPA. He also framed 10 substantial questions for reference to the High Court of Manipur mainly on as to whether Government of India can deny the grant of prosecution cases against the accused army personnel when the CBI has found sufficient materials against them for prosecution. It may be pertinent to point out here that during the pendency of the reference case before the High Court, Union of India approached the Sessions Court against the order of the CJM/IW. The High Court of Manipur also directed the Sessions Court, Imphal West to dispose of the pending criminal revision cases filed by Union of India challenging the order passed by the CJM/IW expeditiously.
It is apposite to reiterate that the Final Report submitted by CBI has arisen out of the FIR registered by CBI in pursuance to the directions issued by Supreme Court in WP (Crl.) No. 129 of 2012 filed by EEVFAM and HRA praying for investigation and prosecution of security personnel involved in fake encounters. The Sessions Judge, Imphal West delivered his judgment on July 4, 2022. The Judge observed that since the writ petition has been filed by EEVFAM to the Supreme Court informing the factum of 1528 fake encounter cases in Manipur, EEVFAM can be considered as the first informant of the case and as such, EEVFAM is entitled to receive notice from ld. CJM/IW for considering the Final Report/Closure Report submitted by CBI.
(To be contd)